Council of Europe foreign ministers call for libel reform

Trickling back from
the summer recess, European press freedom advocates and media lawyers are
taking stock of facts and statements that went underreported during the holiday
lull. And libel reform stands on top of the pile.

On June 20 in a stunning
verdict, two Italian journalists were sentenced by the Bolzano Court in Italy's
South Tyrol to four months in prison and fined 15,000 euros (US$18,500) for
libel. Orfeo Donatini, a journalist with the daily newspaper Alto Adige, and Tiziano Marson, its
former director, had been sued by local politician Sven Knoll for a 2008
article alleging that he had participated in a neo-Nazi gathering. According to
freedom of expression group Article 19, Italy and Belarus are the only two European
countries where journalists can still receive prison sentences for defamation.

Ironically, the
verdict was issued a few days before the Committee of Ministers of the Strasbourg-based
Council of Europe adopted a declaration denouncing the abuse of defamation laws.
"Disproportionate application of these laws may have a chilling effect and
restrict freedom of expression and information," they said at a meeting on July
4 2012. "Governments should provide appropriate guarantees against awards for
damages and interests that are disproportionate to the actual injury."

The Committee of
Ministers is the Council's top executive body and is comprised of the foreign
ministers of the 47 member states or their deputies. Although its declarations
have no binding force, they are an indication of where the Council of Europe's
member states stand on an issue.

In its statement, the
Committee of Ministers also impugned libel tourism, "a form of forum shopping
when a complainant files a complaint with the court thought most likely to
provide a favorable judgment and where it is easy to sue," as the Committee
stated. "In some cases a jurisdiction is chosen by a complainant because the
legal fees of the applicant are contingent on the outcome, and/or because the
mere cost of the procedure could have a dissuasive effect on the defendant. The
improper use of these laws affects all those who wish to avail themselves of
the freedom of expression."

London has stood out
for years as a destination for libel complainants. "London is a town called
sue," the Observer columnist Nick
Cohen wrote in his 2012 book "You Can't Read This Book." He depicts a judicial system biased against
freedom of expression, often in favor of well-heeled crooks, touchy celebrities,
or bounty-hunting lawyers. "Contrary to natural justice and the Common Law, the
burden of proof is on the defendant," he writes. "A claimant does not have to
prove that a writer has caused him to suffer financial loss or personal injury.
In Britain, money buys silence: the cost of libel actions in England and Wales
is 140 times higher than the European average."

The Committee of
Ministers statement appears to be an endorsement of the defamation reform bill currently going through the British
legislative process. Although the text does not completely satisfy anti-libel
campaigners--in a recent New York Times
piece, U.S. author Rachel Ehrenfeld, who was a victim of libel tourism in
London, referred to "Britain's half-hearted bid to reform
libel law"--the law is
expected to considerably limit the attraction of London as a complainant's destination.
In order to reinforce its case, in particular "the general need for increased
predictability of jurisdiction, especially for journalists, academics, and the
media," the Council of Europe's Committee of Ministers referred in its
statement to declarations by international freedom of expression advocates, in
particular the 2011 Joint Declaration by the Special Rapporteurs of the United
Nations, the Organization of American States, and the African Commission on
Human Rights and Peoples' Rights, as well as of the Organization for Security
and Cooperation in Europe (OSCE) representative on freedom of the media.

The July 4 statement is
meant to have a similarly global reach. Although primarily addressed to the
member states of the Council of Europe, the declaration can be used to frame
the global debate on libel, an issue, as they
write, "which has been exacerbated as a consequence of increased globalization and the persistent accessibility
of content and archives on the Internet."

In that context, the
final passage of the defamation reform bill in London is seen by freedom of
expression advocates as a milestone in their dogged struggle to make Europe unattractive
for libel tourists and defamation peddlers. The U.K. campaigners are still fighting
for amendments to the bill-- in particular, to introduce a clause of public
interest defense. The bill is currently in the House of Commons and should be
sent to the House of Lords before being submitted for Royal Assent to become
law.

(Reporting from Brussels)

CPJ Europe Representative Marthoz is a Belgian journalist and longtime press freedom and human rights activist. He teaches international journalism at the Université catholique de Louvain and is a columnist for the Belgian daily Le Soir.

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Comments

There is an attempt to strengthen the public interest defence in the bill as the current version simply restates the existing (very uncertain) law. The other major amendment (rejected in the House of Commons) would prohibit corporations suing for libel. Neither of these changes or the rest of the bill provide real protection for journalists. Only a US-style law in which a public figure must show malice or recklessness by the journalist could do that